States Line Up To Increase Employer Responsibility

Following landmark immigration
legislation affecting employers in Colorado and
Georgia, a host of other states have
launched their own attempts at immigration control. The bills run the gamut from
initiatives that are little more than an amen chorus for existing federal law,
to those that attempt to mandate worker verification programs and impose stiff
penalties against employers that hire illegal workers. Some more notable reform
attempts involving employers are those in Utah,
Arizona, Missouri and South Carolina. For many businesses, the
question of how to meet the patchwork of demands these measures place on them is
one fraught with opinion, but with few solid answers.

SB 348, the “Missouri Omnibus
Immigration Act” sponsored by Kris Koster (R) and Tim Green (D), could rocket
Missouri into the number one slot for radical immigration reform measures (a
distinction currently held by the state of Colorado).A senate committee is considering
legislation that would require what amounts to mandatory participation in the
currently voluntary DHS sponsored Basic Pilot program. Included in the Omnibus
are also provisions making it illegal to deduct wages paid to illegal workers as
business expenses, the potential for denying business licenses to companies that
hire illegal aliens, and a measure that would authorize cities and counties
within the state to manufacture their own immigration measures.

Arizona has introduced some bills that would echo
Colorado’s new
immigration laws, asking businesses to sign an affidavit swearing they do not
hire illegal workers, as well as measures emphasizing the state’s expectation of
employer compliance with federal law. The measures were approved by the House
Government Committee with the intent to place some of them before voters.

A house committee in Utah has approved a bill,
HB 156, which would require employers to verify new hires’ employment
eligibility by accessing a federal database, presumably the DHS administered
Basic Pilot program. The bill is reportedly intended to control identity theft
perpetrated by illegal workers. Supporters acknowledge the limitations of the
Basic Pilot program, which checks that given names and SSNs match but is not
able to detect duplicate SSNs submitted by more than one applicant.
Unfortunately, identity theft generally involves using a duplicate of an
existing name and SSN and may be entirely undetectable using the proposed
system.

South
Carolina
has a litany of immigration-related proposals abroad, including measures that
would prohibit employers from claiming state tax deductions on wages paid to
unauthorized workers and require companies to withhold 6% of wages for employees
without tax id numbers, as well as mandating Basic Pilot for all employers.
Mississippi
has also introduced a bill that would mandate Basic Pilot for
employers.

State immigration reform bills are
facing stiff opposition from immigrant rights groups and from those who feel
that immigration reform is a federal issue. Nevertheless, many of the state
initiatives are moving forward, and indeed it seems likely that quite a few will
become law.

As the hodgepodge of state
immigration laws grows, so does the unease of employers. There is no clear path
to compliance with many of these laws. “The charge of ‘knowingly hiring
illegal workers’ is ambiguous, and lacks a clear pathway to safe harbor", said
Immigration Attorney Elaine Morley, "Employers must walk a fine line between
carefully examining a new hire’s legal documentation, and over-compliance which
can lead to discrimination charges.” New legislation that varies employer
responsibility from state to state and contains no clear procedure for employer
compliance could make hiring in America a high
wire act with no safety net in place.

About The Author

Diane Adams is a freelance writer specializing in immigration law that affects American employers. She is the editor of The Lookout Monitor, an online publication by Lookout Services, Inc.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.